Legal Studies

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https://hdl.handle.net/20.500.14018/13722

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Why Should the Role of the House of Representatives in Monitoring and Review Local Regulations Be Strengthened?
(2024-08-05) Syam, Fauzi; Helmi, Helmi; Nuriyatman, Eko; Rahardja, Ivan Fauzani; Saputra, Beny; Department of Legal Studies
The enactment of Law No. 15 of 2019, which established the Post-Legislative Scrutiny (PLS) institution, marked a pivotal shift in the formation of laws and regulations (PUU) in Indonesia. This legislation ushered in a comprehensive cycle for PPU, fundamentally altering the landscape of legislative processes. Despite this progress, a prevailing assumption persists that the PLS mechanism is solely within the purview of the People's Representative Council (DPR) concerning national laws, while oversight of Regional Regulations (Perda) falls under the authority of the Regional People's Representative Council (DPRD), with limited discourse on the latter's role in academic circles. This study endeavors to elucidate the theoretical underpinnings of PLS within international parliamentary frameworks, analyze the regulatory framework of PLS Perda as delineated in Law No. 23/2014 and PP No. 12/2018, scrutinize its implementation in Provincial DPRD Rules of Procedure, and advocate for bolstering the DPRD's role in conducting PLS Perda. Findings reveal a lexicon of PLS terminology within Indonesian legislative context, alongside a bifurcation of PLS Perda oversight between the DPD and DPRD. Alarmingly, a staggering majority (93.10%) of Provincial DPRDs nationwide have yet to formalize PLS procedures in their Rules of Procedure, with only the DIY Provincial DPRD demonstrating comprehensive implementation among the 34 surveyed. The imperatives for empowering DPRD's Bapemperda include evaluating Regional Regulations' efficacy, fostering legal coherence, preempting discriminatory legislation, enhancing legislative quality through experiential learning, and resolving the institutional dualism between DPD and DPRD in PLS Perda oversight. These measures not only fortify legislative processes but also mitigate jurisdictional ambiguities, ensuring robust governance at both national and regional levels.
Analyzing the Code of Hammurabi: Exploring Ancient Legal Principles and Their Relevance in Modern Law
(2024-06-29) Saputra, Beny; Bene, Olivér; Saputra, David Aprizon; Department of Legal Studies
This study examines the Code of Hammurabi, an ancient legal code that dates to early human history, to investigate its old legal ideas and evaluate their ongoing significance in contemporary legal systems. This study seeks to clarify the fundamental concepts that underlie Hammurabi's rules and their lasting influence on modern legal thinking by conducting a thorough investigation of the Code's provisions and historical background. This research aims to provide significant insights into the development of legal norms and their application in addressing current legal difficulties by analyzing important elements such as justice, equity, and societal order as outlined in the Code. This study examines the degree to which Hammurabi's legal ideas align with contemporary legal frameworks. It provides insightful analysis on the lasting significance and flexibility of ancient legal precedents in creating modern legal jurisprudence. This research enhances our comprehension of the historical origins of law and its enduring importance in contemporary legal discussions.
Strengthening ADR System in Indonesia: Learning from ADR Practices in Hungary
(2024-05-28) Saputra, Beny; Department of Legal Studies
Integrating Alternative Dispute Resolution (ADR) into legal systems is essential for improving access to justice, decreasing litigation expenses, and promoting enforced outcomes. This article examines the ADR practices in Hungary, a country that has successfully integrated ADR into its legal system, to gain significant insights for Indonesia, as both countries share the same sociocultural practices for communal dispute resolution. This normative legal research examines Hungary's extensive legal framework, the roles of institutional support structures, and the enforcement of ADR awards. The study employs comparative analysis that systematically evaluates pertinent legal documents, institutional reports, and scholarly literature from Hungary and Indonesia. The study found fundamental factors that contribute to the effectiveness of alternative dispute resolution (ADR) in Hungary, including the existence of a clearly established legislative framework, sufficient institutional infrastructure, and effective regulation to enforce ADR decisions. Indonesia can adopt these techniques to improve its Alternative Dispute Resolution (ADR) system, resulting in more streamlined, cost-efficient, and fair processes for resolving disputes and to establish a more unified and efficient ADR system.
Hungary’s AI Strategy: Lessons for Indonesia’s AI Legal Framework Enhancement
(2024-07-06) Saputra, Beny; Hartati, Hartati; Bene, Olivér; Department of Legal Studies
This study analyses Hungary's approach to regulating artificial intelligence (AI) by analyzing their AI Strategy (2020-2030) and provides insights for improving Indonesia's legal framework. In Hungary, although there is no dedicated legislation for artificial intelligence (AI), the country places a high importance on adhering to current regulations to regulate AI technologies. This paper does a comparative analysis to evaluate the influence of Hungary's approach on the advancement of artificial intelligence (AI), the methods used to enforce regulations, the ethical principles followed, the safeguarding of data, and the extent of international partnerships. This research seeks to offer practical insights for enhancing Indonesia's legal infrastructure in the field of AI governance and technology regulation by comparing Hungary's regulatory landscape with Indonesia's current framework. The purpose of the research is to provide guidance to policymakers and stakeholders in Indonesia regarding effective tactics and best practices based on Hungary's experience. This will assist in enhancing Indonesia's regulatory framework for AI and technology
Pyramid and Ponzi schemes and the repercussions of the differing regulatory approaches: Hungarian developments in the light of contemporary global trends
(Hungarian Academy of Sciences, 2022) Tajti, Tibor; Department of Legal Studies
Apart from a few shorter papers inspired by the nomination of a new crime prohibiting the organization of ‘pyramid games’ by the Hungarian Criminal Code in 1996, the topic of ‘pyramid and Ponzi schemes’ remained of little interest to Hungarian legal scholars. Internationally, the topic has garnered increased attention due to the grave socio-economic effects of ever newer scheme-collapses, from the high-profile American Madoff (2009) to the myriad less-known cases from emerging systems like the fiasco of the Albanian pyramid schemes in the mid-1990s, pyramid schemes camouflaged as multi-level marketing (MLM) ventures, or their online versions more recently. Comparative works that would juxtapose the pertaining laws and experiences of the United States with those of Hungary are lacking. To fill the void, this article contrasts a select number of differing regulatory approaches. At one end of the spectrum is the United States (US), which, instead of passing sector-specific laws, mobilized and adapted the enforcement tools of all utilizable branches of law to combat the schemes. While in the US this has been uniquely primed by securities laws, in Hungary the task remains limited to what criminal law and the criminal justice system could offer, coupled with the dominantly ad hoc reactions of the Hungarian Securities and Exchange Commission (SEC). Development of tests to distinguish legitimate Multi-Level Marketing (MLM) companies from pyramid schemes disguised as such represents the only segment where significant rapprochement occurred between the US, the European Union (EU) and therefore also Hungary. For contrast and illustration of the other end of the spectrum, the systems that were forced to react to risks corollary to the schemes by enacting sector-specific laws, the most recent regulatory reactions of India, Myanmar, and Sri Lanka had to be resorted to. As the latter two imposed complete bans on all MLMs, it is only the Indian 2019 comprehensive act that attempts to combat the schemes and akin forms of financial fraud relying on a new comprehensive regulatory model. The Philippines is an interesting mixture made of local and transplants that readily proves that the solutions of the most developed US system could successfully be transplanted into a significantly different socio-economic environment.
A New Frontier: The Challenges Surrounding the Deepening Impact of Data Protection Regulations on Bankruptcy Law
(Union University Law School Belgrade, 2023) Tajti, Tibor; Department of Legal Studies
Notwithstanding the unprecedented and global prestige that data privacy (or data protection, in Europe) law has gained in the 21st century, comparative analyses of the effects flowing from the intensifying impact of data protection law on bankruptcy (insolvency) law remain unexplored. In addition to canvassing the history and contours of the data protection–bankruptcy law interface, through an empirical comparison of available court and data protection agency (authority) cases in multiple jurisdictions, this article fills this gap by identifying and exemplifying various modalities through which data protection law interferes with the bankruptcy process or creates tensions between the two branches of law, based on the comparison of available court and data protection authority (agency) cases in Europe (including the United Kingdom), the United States, as well as Canada and China, as middle-ground systems.
Liars, Skeptics, Cheerleaders: Human Rights Implications of Post-Truth Disinformation from State Officials and Politicians
(Springer Science and Business Media LLC, 2023) Deluggi, Nicky; Ashraf, Cameran
The purpose of this paper is to philosophically examine how disinformation from state officials and politicians affects the right to access to information and political participation. Next to the more straightforward implications for political self-determination, the paper examines how active dissemination of lies by figures of epistemic authority can be framed as a human rights issue and affects trust patterns between citizens, increases polarization, impedes dialogue, and obstructs access to politically relevant information by gatekeeping knowledge. Analyzing European Convention on Human Rights (ECHR) case law, the paper argues that human rights law provides some argumentative basis for extending individuals’ rights as epistemic and political agents towards a “right to truth spoken by politicians”. However, challenges in balancing a possible restriction of lies and assessing the real effective harm that comes from them remain, potentially leading to a vacuum of rights protection for less visible long-term harm to individuals and public discourse. In order to have a real chance at tackling the harmful consequences of publicly told lies from a human rights perspective, it is necessary to rethink the notion of harm to encompass more complex and abstract forms of politico-epistemic damage to individuals and the public.
MANstruation: A cyberethnography of linguistic strategies of trans and nonbinary menstruators
(Elsevier, 2023-07) Kosher, Rowena B.D.; Houghton, Lauren C.; Winkler, Inga T.
Trans and nonbinary experiences of menstruation are subject to menstrual discourse that is deeply gendered. Terms such as “feminine hygiene” and “women's health” make trans and nonbinary people acutely aware that they fall outside of the ideal of the default menstruator. To better understand how such language affects menstruators who are not cis women and what alternative linguistic strategies they adopt, we conducted a cyberethnography of 24 YouTube videos created by trans and nonbinary menstruators, along with their 12,000-plus comments. We observed a range of menstrual experiences—dysphoria, tensions between femininity and masculinity, and transnormative pressures. Using grounded theory, we identified three distinct linguistic strategies vloggers adopted to navigate these experiences: (1) avoiding standard and feminizing language; (2) reframing language through masculinization; and (3) challenging transnormativity. The avoidance of standard and feminizing language, coupled with a reliance on vague and negative euphemisms, revealed feelings of dysphoria. Masculinizing strategies, on the other hand, navigated dysphoria through euphemisms—or even hyper-euphemisms—that showed an effort to reclaim menstruation to fit within the trans and nonbinary experience. Vloggers responded through tropes of hegemonic masculinity, using puns and wordplay, and sometimes relying on hypermasculinity and transnormativity. Transnormativity, however, can be polarizing, and vloggers and commenters who rejected stratification of trans and nonbinary menstruation challenged it. Taken together, these videos not only uncover an overlooked community of menstruators who demonstrate unique linguistic engagement with menstruation, but they also reveal destigmatization and inclusion strategies that can inform critical menstruation activism and research as a whole.
The Rule of Law at Risk: What is Next?
(Springer, 2019) Uitz, Renáta; Department of Legal Studies
Written for a collection to celebrate the scholarship of Martin Krygier this brief essay explores some thorny questions surrounding the operation of the European Union’s mechanisms meant to safeguard the rule of law. It focuses on the hesitation of European constitutional actors to provide legal responses to the chicanery animating the actions of illiberal rulers as well as on the difficulties that follow from Article 7 TEU being framed as a risk assessment exercise.
Comparative Perspectives on Specialised Intellectual Property Courts: Understanding Japan's Intellectual Property High Court Through the Lens of the US Federal Circuit
(Cambridge University Press, 2021) Tilt, David; Department of Legal Studies
This article develops a comparative analysis of specialised courts in intellectual property across both Japan and the US. This article considers the IPHC through the lens of the CAFC to investigate the differing institutional impact and illuminate the most pressing issues in Japanese patent law that have emerged as a result of transplanting this specialised court. Rather than a more conventional analysis of the implementation of these institutions, this article focuses instead on a comparative investigation of the soft law elements that have significantly influenced their effectiveness, providing a different insight on the relationship between these institutions and their broader contextual impact. The main findings of the comparative analysis are found in two primary areas – the impact of specialised courts on the consistency and reliability of patent law; and secondly, recommendations regarding the potential reform of Japanese patent law as it relates to the role of the IPHC. In terms of reform, this article analyzes the double-track problem in Japanese patent law and the key role that, with some modification to the court/patent office relationship, the IPHC could play in addressing this issue with a more fundamental realignment of patent law with its Continental history.
The social field of international adjudication: Structures and practices of a conflictive professional universe
(Cambridge University Press, 2023) Soave, Tommaso; Department of Legal Studies
The modern professional world of international adjudication bears little trace of the ‘invisible college’ theorized by Oscar Schachter 50 years go. Instead, it has become a social field marked by a fierce competition among actors possessing unequal skills and influence. Moving from these premises, this article unravels the socio-professional dynamics of the community of legal experts – judges, arbitrators, government agents, private counsel, court bureaucrats, specialized academics, etc. – dealing with the judicial settlement of international disputes on a daily basis. On the one hand, the community has developed a specific set of social structures, practices, and dispositions that distinguish it from the rest of the international legal profession and insulate its activities from outside interference. On the other, it is the site of an endless struggle among its participants, who deploy various forms of capital to consolidate their positions relative to one another. Having outlined the twofold structure of the community – externally autonomous and internally conflictive – the article reflects on how co-operation and competition affect the everyday unfolding of international judicial proceedings and the production of legal outcomes at the international level.
The Rule of Law as Legal Despotism: Concerned Remarks on the Use of “Rule of Law” in Illiberal Democracies
(Springer, 2019) Sajó, András; Department of Legal Studies
Designing remedies for a recalcitrant administration
(Taylor & Francis, 2020) Mukherjee, Gaurav; Tuovinen, Juha; Department of Legal Studies
This article concerns remedial design by courts in cases where constitutional rights are jeopardised by a recalcitrant administration. We focus on the recent judgment of the South African Constitutional Court in Bhekindlela Mwelase v Director-General for the Department of Rural Development and Land Reform – in particular its doctrinal innovation in appointing a Special Master to oversee the processing of labour tenant claims by the Department of Rural Affairs and Land Reform. We argue that the case raises both conceptual and practical questions about the relationship between rights and remedies, substantive law, and the separation of powers. We approach these questions after considering the judgment in its socio-political context through a consideration of the factors underlying the granting of the remedy, from both a theoretical and comparative perspective. The paper identifies a set factors that underpinned the Court’s decision that will be likely to influence the granting of invasive remedies in future cases. We then apply these factors to the judgment of the Supreme Court of India in the Right to Food Case to better understand the ways they play out in a different jurisdictional context. These factors can provide doctrinal and normative guidance for courts – especially in the so-called Global South – that often operate under conditions of chronic recalcitrance, inattentiveness, inaction, or incompetence of the coordinate branches of government.
The misuse of the legislative process as part of the illiberal toolkit. The case of Hungary
(Taylor & Francis, 2021) Kazai, Viktor Zoltán; Department of Legal Studies
The Fidesz-KDNP coalition parties were voted into office in 2010 with a two-thirds majority in the unicameral National Assembly, which gave them significant leeway to implement their political agenda smoothly. Nevertheless, the governing coalition, driven by revolutionary zeal, was determined to put in place major legislative reforms as quickly as possible in the face of every opposition. This attitude led to the instrumentalization of parliamentary legislation which manifested itself in an increasing number of serious irregularities of the legislative process. This article argues that the procedural flaws of parliamentary law-making constitute an infringement of the rule of law principle as it is interpreted in the Council of Europe and the European Union. In order to show that the situation is much more serious in Hungary than the criticisms voiced by the European rule of law mechanisms suggest, we analyze all the constitutional review cases in which legislative acts were challenged on procedural grounds after 2010. Finally, we discuss the outcome of the cases adjudicated by the Hungarian Constitutional Court to see which irregularities were found unconstitutional.
The Janus face of legal pluralism for the rule of law promotion in sub-Saharan Africa
(Taylor & Francis, 2019) Gebeye, Berihun Adugna; Department of Legal Studies
Beyond being a descriptive framework of the legal universe in sub-Saharan Africa, legal pluralism has become a policy field in the rule of law promotion. The aim of this article is to problematize and clarify how legal pluralism has been deployed for rule of law, and on what grounds sustainable rule of law through legal pluralism hold. Due to the syncretic nature of the state in sub-Saharan Africa, it is contended that legal pluralism is configured with a Janus face. While one face of legal pluralism connects the state to the society and is positioned to maintain internal peace and order, the other face connects the state to the international community and consequently shields it from external threat. This article argues that a sustainable rule of law promotion rests on the dialectic of the constitutional systems and the Janus faced configuration of legal pluralism in sub-Saharan Africa.
Playbook of Subnational Illiberalism: Autocrats Face the Opposition-led Local Governments
(Springer, 2022) Begadze, Mariam; Department of Legal Studies
Recognizing the growing tensions between autocrats in the center and opposition-led local governments in Hungary, Poland and Turkey since 2018–2019 local elections, the article contributes to existing literature on illiberal democracies with a subnational portion of illiberal playbook. Tactics identified through the detailed study of the European context and brief review of Latin American experience leaves us with the following categories in the playbook: abuse of (existing) supervisory and accountability mechanisms; generating of financial vulnerability; centralization (outright and indirect) and deconcentration. Each of these categories assemble various means evolving through application and reinterpretation of traditional rules pertaining to local government, as well as crisis-induced innovations. While the Polish account carries the optimism still that antecedent robust guarantees and popular support matter even when illiberals rule the center, the playbook proved successful in Hungary and Turkey. Although certain incrementalism stayed as the most vulnerable actors were the first victims of soon-to-be normalized measures, crisis in Hungary and Poland did stretch the limits to the point that ulterior motives of undermining opposition-led local governments became publicly observable. Reflecting on this phenomenon, in the end, the article poses a theoretical question whether such pretextual instrumentalization of law can itself be judicially manageable, at least in situations when clear political opponents are targeted.
Machines that make and keep promises - Lessons for contract automation from algorithmic trading on financial markets
(Elsevier, 2022) Schmidt-Kessen, Maria José; Eenmaa, Helen; Mitre, Maya; Department of Legal Studies
An important part of the criticism raised against the adoption of advanced contract automation relates to the inflexibility of automated contracts. Drawing on rational choice theory, we explain why inflexibility, when seen as a constraint, can ultimately not only enhance welfare but also enable cooperation on algorithmic markets. This illuminates the need to address the inflexibility of contracting algorithms in a nuanced manner, distinguishing between inflexibility as a potentially beneficial constraint on the level of transactions, and inflexibility as a set of systemic risks and changes arising in markets employing inflexible contracting algorithms. Using algorithmic trading in financial markets as an example, we show how the automation of finance has brought about institutional changes in the form of new regulation to hedge against systemic risks from inflexibility. Analyzing the findings through the lens of new institutional economics, we explain how widespread adoption of contract automation can put pressure on institutions to change. We conclude with possible lessons that algorithmic finance can teach to markets deploying algorithmic contracting.
Systemic and topical mapping of the relationship of the draft common frame of reference and arbitration
(Kazimieras Simonavicius University, 2013) Tajti, Tibor; Department of Legal Studies
Cracking the citadel walls: A functional approach to cosmopolitan property models within and beyond national property regimes
(2014) Sganga, Caterina; Department of Legal Studies
Due to its strong connection with sovereignty, territoriality and socio-economic policies, property law is traditionally considered part of the closed citadel of national law. This axiom is reinforced by private international law, where the mandatory principle of lex rei sitae acts as a barrier against the cross-fertilization of national property systems. No international treaty has ever touched the field directly; even in Europe, in spite of the interference of EU acts on national property laws, the Lisbon Treaty leaves property in the exclusive competence of Member States. It is not by accident that the majority of comparative law scholars approach the subject with a state-centric perspective, often emphasising the unbridgeable divide between different property traditions. Today the citadel is under multilateral attack. Bilateral investment treaties (BITs) and other international agreements break long-lasting dogmas and extend the scope of property to cover not only intangible assets, but also contractual rights and expectations. 'Cosmopolitan' human rights courts use a sui generis comparative approach to develop a similar autonomous conceptualisation of subject matter, structure, and content of property rights, while the potential horizontal effects of their decisions nullify the traditional constitutional/private law property divide. Internet and private ordering push for the cross-border recognition of virtual or quasi-proprietary entitlements, questioning the fundamental separation between property and contract and the sanctity of the numerus clausus principle. No matter how vigorously legal formants have tried to reinforce the citadel walls, these cosmopolitan 'irritants' have already engendered several interpretative short-circuits, which a state-centric comparative analysis is unable to deconstruct and explain. To overcome the impasse, this paper advocates for the adoption of the functional method to verify the existence of a new global property model, sketch out its main characteristics, and help national legal systems embedding these new cosmopolitan elements, whether within or outside property law.
A test halhatatlansága: Bioetikai és jogi dilemmák a XXI. században
(2006) Sándor, Judit; Department of Legal Studies

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